Scalia realises that Heller decision was a mistake

upon encounter with open carry idiot:

Why I should love Heller-McDonald!

First off, I want to repeat something I mentioned in the Wisconsin AFL-CIO  post on Gun Control from yesterday

Corporate America could care less about gun control, traditional family values or abortion (or the latest useful single issue-of-the-day), nor does it feel totally comfortable with the extremism of the religious front for the Right, but the overall movement serves corporate economic interests perfectly.

 If you missed the fact that Dick Heller and Otis McDonald didn't foot the bill for their cases going to the Supreme Court, or that the outcomes would most likely be different had they been footing the bill--these cases were funded by the Cato Institute.

I have to admit that I am not sure of why Cato would have funded these cases other than as an experiment to see how much they could use the judicial system to thwart the democratic process.  It's more of a cynical ploy to use the type of thing the right calls "Judicial Activism" to the right's advantage.  Although, if the intent was "gun rights", these cases fail miserably!

Not to mention, gunloons can chant their meaningless mantra of "individual right", but these decisions re pretty much useless if your goal is some sort of significant form of "gun right".

Once again here is the Heller-McDonald language:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

Which has as a footnote (26):

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Better yet:

But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

From McDonald:

It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

The only thing off the table is anything that purports to be a ban. Which leads to my question: had Chicago theoretically allowed for registrations (as does New York City) since that is not an “absolute prohibition”– would the law have passed constitutional muster? After all, NYC’s law has been around for 99 years: doesn’t that count as a longstanding regulatory measure?

Likewise, Candidates cannot say that gun laws violate the Second Amendment if they do not infringe upon the rights to truly “law abiding citizens” to own firearms. As the Court said (twice) “the right to keep and bear arms is ‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”  Neither of these decisions got rid of registration or background checks and the most amusing aspect was that Dick Heller was refused a gun permit after all this was over!  Not only that, Heller's appeal of that decision upheld DC's Firearms restrictions!

Challenges to firearms laws post-Heller-McDonald have pretty much fallen on their faces with the Brady Campaign issuing a report calling them  a "Hollow Victory".  According to that report: "Since the Heller ruling, criminals and the gun lobby have brought more than 400 challenges to gun laws, an average of more than two legal challenges every week over the last three years. Yet, the courts have overwhelmingly rejected those cases."

And why not?  It seems that pretty much the only thing which is off the table is a firearms ban.  Othwerwise, "longstanding regulatory measures" are pretty much OK according to the new interpretation of the Second Amendment.

There is now no reason why a politician cannot support stricter regulation of firearms using these shoddy decisions and remain "faithful to the Second Amendment"--Well, other than the NRA will do everything to crucify them.  But, the question also remains how relevant is the NRA to the political process?

Paul Waldman, of the American Prospect, has recently argued that the NRA's dominance is a myth. He has looked closely at the figures and writes, “Despite what the NRA has long claimed, it neither delivered Congress to the Republican party in 1994 nor delivered the White House to George W. Bush in 2000.” He also argues that NRA money has no impact on congressional elections, as it spreads its money over so many races, and that NRA endorsements are “almost meaningless” as most go to incumbent Republicans with little chance of losing.

More cause for concern came on April 17th, when the American Legislative Exchange Council ended its task force responsible for promoting pro-gun legislation. This followed the controversy over ALEC’s ties to "stand your ground" laws around the country. ALEC will now focus its efforts on jobs, free markets and growth, but not firearms.  Just remember that ALEC, Cato, and the Koch Brothers are pretty much the same thing.

Developments are beginning to suggest an attenuated NRA. The organisation has had its political power called into question, lost an ally in promoting gun laws, and caters to an ageing demographic, on top of pushing a potentially dangerous product that is of less interest to American households. Time will tell, but it seems reasonable to wonder whether the NRA has as much firepower as it claims.

 In fact, While support for “gun control” in the abstract has declined in recent years as the issue has been out of the spotlight, widespread support for specific measures to restrict gun sales remains as high as ever.  If anything, the Heller-McDonald decisions make it easier for a politician to say he is "pro-Second Amendment" yet pro-gun control.  The real question is how long can guns remain a wedge issue?

People may have begun to wake up on this one, or will just see the handwriting is on the wall for the concept of "gun rights".

See also:

• The Myth Of NRA Dominance Part I: The NRA’s Ineffective Spending
• The Myth Of NRA Dominance Part II: Overrated Endorsements
• The Myth Of NRA Dominance Part III: Two Elections The NRA Did Not Win
• The Myth Of NRA Dominance Part IV: The Declining Role Of Guns In American Society
• the Economist, Guns in America: The NRA’s star may be on the wane, Apr 19th 2012 
• Brady Campaign, Hollow Victory

Heller Sucks Big Time!

Libertarian Critiques of Heller by people who actually read it and aren't apologists for it:

See

• http://www.lewrockwell.com/grigg/grigg-w32.html,
• http://www.lewrockwell.com/blog/lewrw/archives/021863.html
• http://www.lewrockwell.com/blog/lewrw/archives/022039.html,
• http://www.lewrockwell.com/blog/lewrw/archives/022044.html.

Since you know that I think that Libertarianism is basically Fascism wearing a smiley face, you can tell that these are truly opinions from "your side" that show Heller-McDonald was the biggest eff over you lot have ever had.

But,you don't listen to me since I'm "anti-gun".

Maybe, you'll listen to this lot.

Schengen, Small arms treaty, and Heller

This is an ellaboration on my comment in The Filthy Lying NRA and Their Incredibly Slick Phone Operators

The UN Small Arms treaty sounds as if it would influence US firearms laws the same way that the Schengen Treaty influenced the Swiss firearms laws. The Schengen Agreements have created a borderless Schengen Area, which operates very much like a single state for international travel with border controls for travellers travelling in and out of the area, but with no internal border controls. Part of these changes was to harmonise laws in order to eliminate customs checks. One major change in the Swiss Firearms law is that Gun trade among individuals will require a valid weapon acquisition permit which is a radical restriction, from a Swiss point of view, that is assumed will undercut private gun trade dramatically.

The aim of a potential U.N. arms treaty is to combat the illicit international trade of small arms by "tightening regulation of, and setting international standards for, the import, export and transfer of conventional weapons" in order to "close gaps in existing regional and national arms export control systems that allow weapons to pass onto the illicit market." Even if such a treaty came to pass, U.S. rights and laws regarding the sale and ownership of small arms would still apply within the United States.

The problem is that the Supreme Court said that laws imposing conditions and qualifications on the commercial sale of arms were acceptable in Heller-McDonald. Additionally, Registration was acceptable as well. The only issue is whether the US would implement those Constitutionally acceptable restrictions.

I do like how the Snopes piece on this ended:

There is no "legal way around the 2nd Amendment" other than a further amendment to the Constitution that repeals or alters it, or a Supreme Court decision that radically reinterprets how the 2nd Amendment is to be applied.

I thought that already happened with Heller-McDonald.

Laci Says

Although the title of the post is "Turtles all the way down," and uses this very enjoyable Stephen Hawking story to make a point, I'd call this essay "How the Supremes can be Mistaken."

The argumentum ad populum. Something is true because many or all people believe it. There is a converse to this the argumentum ad verecundiam, the argument from authority or appeal to authority is a logical fallacy, where it is argued that a statement is correct because the statement is made by a person or source that is commonly regarded as authoritative.

But, if the people or the authority is wrong, then that does not make the proposition true. So, even if 5 out of 4 of the Supreme Court justices rule that something is the law, that does not make it proper law.

The question is how does one educate the people that the popular beliefs about the Second Amendment, in particular it's being an "individual right" are The Emperor's New Clothes. There really isn't anything there. Heller was pure partisan politics which is the only reason that piece of intellectual dishonesty could have been written.

Everyone who has read the decision has found it wanting, with the exception of some gun control groups who are happy that it allows for reasonable restrictions. I have to admit that it is a harbinger of ill when I think of this in light of Cass Sunstein: "The Second Amendment: The Constitution's Most Mysterious Right", but I am not sure how the ill will come about.

It certainly is interesting how Laci points out that "some gun control groups [who] are happy that it allows for reasonable restrictions." I never noticed that, I've been so busy listening to the pro-gun crowd praising Heller to high heaven.

What do you think about calling it "partisan politics" and "intellectual dishonesty?" Do you think there's anything to those accusations?

Of course if it is true, if the Heller decision was a departure from the true juridical ideals we expect from the Supreme Court, we may be in for more of the same. But sooner or later, the possibility exists that a Court, one perhaps lacking Justice Scalia, might straighten this all out.

What do you think? Please leave a comment.

Supreme Court to Rule on Gun Rights

Thanks to my big friend George I was able to read this Reuters article published in the New York Times. As expected after the Chicago ruling earlier this year, which upheld that city's ban on handguns, the Supreme Court has confirmed they will rule on the question of States' rights to administer gun control.

The Supreme Court will decide whether the constitutional right of individuals to own firearms trumps state and local laws, reviving the legal battle over gun rights in America.

The high court said Wednesday it agreed to decide the reach of its landmark ruling last year that the Second Amendment of the U.S. Constitution guaranteed an individual right to own guns and use them for lawful purposes like self-defense in the home.

The upcoming decision will be very import in clarifying and confirming the accepted interpretation of DC vs. Heller, that state and local laws do not violate the spirit of the 2nd Amendment.

The court last year prohibited the federal government from imposing certain restrictions, but it left unclear whether the right also applied to state and local gun control laws.

The Supreme Court said in a brief order it would settle that question by ruling in a dispute over a strict gun control law in Chicago.

I don't know about you, but I'm getting all excited already. One of our newest regular commenters, VOR, has me pegged.

What's your opinion? Is this as important as it sounds? Could this be a landmark decision in the debate about the individual vs. collective interpretation of the 2nd Amendment?

What do you think? Please leave a comment.